THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Palmetto Pointe at Peas Island Condominium Property 

Owners Association, Inc. and Jack Love, individually, 

and on behalf of all others similarly situated, Plaintiffs, 

v. 

Island Pointe, LLC; Complete Building Corporation; TriCounty Roofing, Inc.; Creekside, Inc.; American 

Residential Services, LLC d/b/a ARS/Rescue Rooter 

Charleston; Andersen Windows, Inc.; Atlantic Building 

Construction Services, Inc., n/k/a Atlantic Construction 

Services, Inc.; Builder Services Group, Inc. d/b/a Gale 

Contractor Services; Novus Architects, Inc., f/k/a SGM 

Architects, Inc.; Tallent and Sons, Inc.; WC Services, 

Inc.; CRG Engineering, Inc.; CertainTeed Corporation; 

Kelly Flooring Products, Inc, d/b/a Carpet Baggers; 

Cornerstone Construction and Mark Malloy d/b/a 

Cornerstone Construction; Miracle Siding, LLC and 

Wilson Lucas Sales d/b/a Miracle LLC; Mark Palpoint 

a/k/a Micah Palpoint; Elroy Alonzo Vasquez; Chris a/k/a 

John Doe 61; Alderman Construction; Stanley's Vinyl 

Fence Designs; Cohen's Drywall Company, Inc.; Mosely 

Concrete; H and A Framing Construction, LLC a/k/a 

H&A Framing Construction, LLC and d/b/a H and A 

Framing, LLC, H&A Construction, and Hand A 

Construction; JMC Construction, Inc., JMC 

Construction, LLC, John Doe 1-15, Defendants, 

of which Palmetto Pointe at Peas Island Condominium 

Property Owners Association, Inc. and Jack Love, 

individually, and on behalf of all others similarly situated 

are the Respondents, 

and 

Tri-County Roofing, Inc. is the Appellant. 
Appellate Case No. 2019-001790 

Appeal From Charleston County 

Jennifer B. McCoy, Circuit Court Judge 

Opinion No. 5996 

Heard February 14, 2023 – Filed June 28, 2023 

AFFIRMED IN PART AND REVERSED IN PART 

Christian Stegmaier and James Lloyd Williams, both of 

Collins & Lacy, PC, of Columbia, for Appellant. 

Stephanie D. Drawdy and Joshua Fletcher Evans, both of 

Justin O'Toole Lucey, P.A., of Summerville; Edward D. 

Buckley, Jr., of Clement Rivers, LLP, of Charleston; and 

Anna Scarborough McCann and Justin O'Toole Lucey, 

both of Justin O'Toole Lucey, P.A, of Mount Pleasant, all 

for Respondents. 

KONDUROS, J.: In this condominium construction defect case, subcontractor 

defendant Tri-County Roofing, Inc. (TCR) appeals the trial court's decision 

regarding setoff. TCR contends the trial court erred in not setting off the entirety 

of a posttrial settlement between the plaintiffs and codefendant general contractor 

Complete Building Corporation (CBC). TCR further contends the trial court erred 

in denying its motion for a complete setoff of pretrial settlements between the 

plaintiffs and several other defendants involved in the project. We affirm in part 

and reverse in part. 

FACTS/PROCEDURAL HISTORY 
In 2005, Island Pointe, LLC, as developer, entered into a contract with CBC for the 

construction of forty duplex condominium units1 as a project called Palmetto 

Pointe at Peas Island, located near Folly Beach. CBC subcontracted with TCR to 

install the siding and roofing. Later, the installation of waterproof membranes on 

decks was added by change order. TCR's general scope of work included the 

roofing, siding, trim, and waterproofing the decks, and their bid included fascia, 

soffits, gutters, and downspouts. TCR hired subcontractors to complete its 

obligations to CBC,2 including Eloy Alonzo Vazquez and Miracle Siding, LLC 

(Miracle). Vazquez was responsible for roofs and waterproof membranes, and 

Miracle was responsible for siding on seventeen of the twenty buildings. The units 

were built during 2006 and 2007. 

In late 2014 to early 2015, the Palmetto Pointe Condominium Property Owners 

Association (the Association) noticed ongoing leaking issues related to the roofing. 

The Association hired a company to investigate. Later, an engineer was hired and 

discovered building code violations and other construction deficiencies. 

On February 13, 2015, the Association and a homeowner, as class representative,3 

(collectively, Plaintiffs) filed a complaint. The complaint alleged negligence, gross 

negligence, and breach of implied warranty against CBC, TCR, and other 

subcontractors. The complaint requested actual and punitive damages. TCR 

answered and cross-claimed against its subcontractors. Plaintiffs amended their 

complaint twice and added TCR's subcontractors as defendants. CBC, the 

developer, and Novus Architects filed cross-claims against other defendants. 

Prior to trial, numerous defendants reached settlement agreements with Plaintiffs 

totaling in aggregate between $4,725,000 and $5,012,500. The parties agree some 

of the settlements were for damages that were removed from the trial of the case. 

1 Eventually, two more duplex buildings were built. Those were built at a later 

time by different entities and were not at issue in these proceedings. 

2 TCR did not do any actual work on the construction of the units; it was a 

middleman between CBC and TCR's subcontractors and also supervised those 

subcontractors' work. 3 That representative was later replaced by another homeowner, Jack Love, who is 

a respondent in addition to the Association in this appeal. The class was never 

certified. 
Those settlements total $1,407,500 and have been referred to as issue release 

settlements.

4 

In addition to the issue release settlements, Plaintiffs entered into several other 

settlement agreements. Plaintiffs settled with Novus Architects, Inc. f/k/a SGM 

Architects, Inc. for $650,000,

5 and with Cohen's Drywall Company, Inc. (Cohen's) 

for $125,000 for work related to installing insulation and drywall. Plaintiffs settled 

with framing subcontractor, Atlantic Building Construction Services, Inc. n/k/a 

Atlantic Construction Services, Inc. for $700,000 and with a subcontractor to 

Atlantic, H and A Framing Construction, LLC, (H and A) for $500,000.

6 

Trial began on May 6, 2019, with eight remaining defendants: Stanley's Vinyl 

Fence Designs; JMC Construction, Inc. (JMC); Island Pointe; CBC; TCR; Miracle; 

Vasquez; and W.C. Services, Inc. Prior to the verdict, three defendants left the 

case. Stanley's settled on the second day of trial for $295,000. The trial court 

dismissed JMC at the directed verdict stage, and Plaintiffs released their claims 

against Island Pointe prior to closing arguments. 

During trial, Plaintiffs presented testimony from various experts demonstrating 

numerous code violations and faulty workmanship. Plaintiffs' expert, Russell 

Mease, testified as to the scope of work that would be required to remedy the 

4 Most of these settlement agreements are included in the record. For a few, the 

record only contains emails agreeing to settlement terms. The following 

settlements are referred to as issue release settlements: (1) American Residential 

Services, LLC d/b/a ARS/Rescue Rooter Charleston, HVAC, $795,000; (2) 

Andersen Windows, Inc.; window product manufacturer, $200,000; (3) Tallent and 

Sons, Inc., grading & paving, $195,000; (4) Kelly Flooring Products, Inc. d/b/a 

Carpet Baggers, carpet and wood flooring installer, $25,000; (5) Alderman 

Construction, interior trim & railings, $75,000; and (6) Mosley Concrete, concrete, 

$95,000. Plaintiffs also settled with Builder Services Group, Inc. d/b/a Gale 

Contractor Service, which had supplied and installed fireplaces, for $22,500. 

5 The trial court's posttrial order states that the settlement amount was $600,000, 

but this appears to be incorrect. 6 Plaintiffs entered into a few more pretrial settlements that were not issue releases 

but are not at dispute on appeal: Creekside, Inc., $150,000, painting and caulking; 

Certainteed, Corp., $35,000, manufacturer of roofing shingles, siding, and trim; 

and Cornerstone Construction, $150,000, siding and flashing. In the settlement 

agreement with Cornerstone, Plaintiffs agreed to grant TCR a setoff for the amount 

paid by Cornerstone for TCR's release of its claims against Cornerstone. 
defects at Palmetto Pointe. Much of the work he described required significant 

demolition and reconstruction in order to rectify the buildings' defects. Plaintiffs' 

damages expert, Jerry Handegan, testified regarding an estimate he prepared after 

being provided with Mease's scope of work evaluation. Handegan's original 

estimate, prepared in December of 2017, totaled $15,257,512. A hand-revised 

estimate, removing certain elements of damage and other revisions, totaled 

$13,428,826 and was completed in May of 2019. 

CBC hired Alan Schweickhardt

7 to investigate the alleged defects at Palmetto 

Pointe. Schweickhardt's testimony focused on deficiencies in the areas covered by 

TCR and its subcontractors, namely roofing, decking, and siding as a water 

intrusion investigation. Steven Watkins prepared an estimate for the scope of work 

investigated by Schweickhardt using more targeted repairs and arrived at a cost of 

$1,898,163.27. 

Mark Poyner testified as the operations manager for TCR. He stated the contract 

between TCR and CBC for was roofing, siding, and deck waterproofing and 

totaled $1,382,558.24. He also testified the amount of the contract between CBC 

and Palmetto Pointe was $11,578,454. His testimony addressed, among other 

things, the liability of CBC and the designers of the project for the resultant 

defects. 

James Lawrence "Larry" Elkin was the damages expert who evaluated the damages 

as to Miracle Siding and Vasquez. Elkin testified the work on the issues causing 

the water intrusion, including flashing and waterproofing, should have been 

coordinated, supervised, and tested—shifting ultimate responsibility back up the 

contracting chain to TCR and CBC. 

In closing, Plaintiffs requested $12.8 million in damages comprised of $12.4 

million in repair costs and $800,000 in lost use. CBC questioned Handegan's 

damages estimate and encouraged the jury to go line by line to see which items 

should be included and which items should be reduced based on the timeline of the 

revised estimate.8 After reviewing some of these items with the jury, CBC 

suggested $6.5 million would be the remaining amount of damages. 

7 Schweickhardt, Watkins, and Poyner are all listed as a plaintiff's witness 

presumably because of the cross-claims between CBC and TCR. 8 Plaintiffs argued some costs should be reduced because they were based on 

renting equipment etc. for a shorter period of time than originally anticipated. 
The jury returned a verdict in W.C. Services' favor. As to the remaining 

defendants, the jury found actual damages in the amount of $6.5 million. The jury 

also found CBC was grossly negligent and awarded punitive damages in the 

amount of $500,000. It likewise found TCR grossly negligent and awarded 

$500,000 in punitive damages. After the verdict form was received, the trial court, 

pursuant to section 15-38-15 of the South Carolina Code (Supp. 2022), crafted a 

special verdict form for the jury in which it would apportion the percentage of 

responsibility for the $6.5 million among the remaining defendants. However, 

because CBC and TCR had been found grossly negligent, their liability could not 

be apportioned pursuant to subsection 15-38-15(F).9 The jury found Miracle and 

Vasquez each responsible for 5% of the actual damages, or $325,000 each. CBC 

and TCR were therefore jointly and severally liable for the remaining 90% of 

actual damages—$5,850,000. The trial court gave the parties ten days to file 

posttrial motions. 

Prior to the hearing on posttrial motions and twenty-one days after the conclusion 

of the trial, Plaintiffs entered into a settlement with CBC for $2,137,500. The 

parties allocated $1 million of the settlement proceeds to items not discussed at 

trial and $637,500 to items that were considered by the jury at trial. $500,000 of 

the settlement proceeds were earmarked for CBC's punitive damages. 

TCR filed multiple posttrial motions, including ones for new trial nisi remittitur, 

new trial absolute, judgment notwithstanding the verdict, elimination of punitive 

damages, and setoff. Both parties prepared setoff recommendation charts. The 

trial court issued a Form 4 Order denying all of TCR's motions except the motion 

for setoff, which it granted in the amount conceded to by Plaintiffs—$1.67 million. 

TCR filed a motion for reconsideration that was primarily devoted to the issue of 

setoff. The trial court did not alter the amount of setoff but offered a somewhat 

more detailed explanation for its rulings. The trial court held a plaintiff is entitled 

to allocate settlement funds in the most advantageous way to it even if that may 

disadvantage a nonsettling tortfeasor like TCR. See Riley v. Ford Motor Co., 414 

S.C. 185, 197, 777 S.E.2d 824, 831 (2015). Additionally, the trial court concluded 

TCR had not met its burden of establishing a dollar-for-dollar setoff by 

establishing the settlements with other defendants were for the same injury. This 

appeal followed. 

9 § 15-38-15(F) ("This section does not apply to a defendant whose conduct is 

determined to be wilful, wanton, reckless, grossly negligent, or intentional or 

conduct involving the use, sale, or possession of alcohol or the illegal or illicit use, 

sale, or possession of drugs."). 
GENERAL LAW REGARDING SETOFF 

"A nonsettling defendant is entitled to credit for the amount paid by another 

defendant who settles." Welch v. Epstein, 342 S.C. 279, 312, 536 S.E.2d 408, 425 

(Ct. App. 2000). "[S]uch a credit is to prevent an injured person from obtaining a 

second recovery of that part of the amount of damages sustained which has already 

been paid to him. In other words, there can be only one satisfaction for an injury 

or wrong." Id. (citation omitted). "Allowing this credit prevents an injured person 

from obtaining a double recovery for the damage he sustained, for it is 'almost 

universally held that there can be only one satisfaction for an injury or wrong.'" 

Rutland v. S.C. Dep't of Transp., 400 S.C. 209, 216, 734 S.E.2d 142, 145 (2012) 

(quoting Truesdale v. S.C. Highway Dep't, 264 S.C. 221, 235, 213 S.E.2d 740, 746 

(1975), overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 

741 (1985)). 

"The right to setoff has existed at common law in South Carolina for over 100 

years." Riley, 414 S.C. at 195, 777 S.E.2d at 830. "In 1988, these equitable 

principles were codified as part of the South Carolina Contribution Among 

Tortfeasors Act (the Act), [sections] 15-38-10 to -70 [of the South Carolina Code] 

(2005 and Supp. 2014)." Id. "[T]he Act represents the Legislature's determination 

of the proper balance between preventing double-recovery and South Carolina's 

'strong public policy favoring the settlement of disputes.'" Id. at 196, 777 S.E.2d at 

830 (quoting Chester v. S.C. Dep't of Pub. Safety, 388 S.C. 343, 346, 698 S.E.2d 

559, 560 (2010)). 

Section 15-38-50 provides: 

When a release or a covenant not to sue or not to enforce 

judgment is given in good faith to one of two or more 

persons liable in tort for the same injury or the same 

wrongful death: 

(1) it does not discharge any of the other tortfeasors from 

liability for the injury or wrongful death unless its 

terms so provide, but it reduces the claim against the 

others to the extent of any amount stipulated by the 

release or the covenant, or in the amount of the 

consideration paid for it, whichever is the greater; and 
(2) it discharges the tortfeasor to whom it is given from 

all liability for contribution to any other tortfeasor. 

Id. 

[A] critical feature of the [Act] is the codification of the 

empty chair defense—a defendant 'retain[s] the right to 

assert another potential tortfeasor, whether a party or not, 

contributed to the alleged injury or damages'—which 

necessarily contemplates lawsuits in which an allegedly 

culpable person or entity is not a party to the litigation 

(hence the chair in question being 'empty'). 

Smith v. Tiffany, 419 S.C. 548, 557, 799 S.E.2d 479, 484 (2017) (quoting § 15-38-

15(D)). 

"Despite a defendant's entitlement to setoff, whether at common law or under 

section 15-38-50, any 'reduction in the judgment must be from a settlement for the 

same cause of action.'" Riley, 414 S.C. at 196, 777 S.E.2d at 830 (quoting Hawkins 

v. Pathology Assocs. of Greenville, P.A., 330 S.C. 92, 113, 498 S.E.2d 395, 407 

(Ct. App. 1998)). "Thus, where a settlement involves more than one claim, the 

allocation of settlement proceeds between various causes of action impacts the 

amount a non[]settling defendant may be entitled to offset." Id. 

"When the settlement is for the same injury, the nonsettling defendant's right to a 

setoff arises by operation of law. Under this circumstance, '[s]ection 15-38-50 

grants the court no discretion . . . in applying a set-off.'" Smith v. Widener, 397 

S.C. 468, 472, 724 S.E.2d 188, 190 (Ct. App. 2012) (alterations in original) 

(citation omitted) (quoting Ellis v. Oliver, 335 S.C. 106, 112-13, 515 S.E.2d 268, 

271-72 (Ct. App. 1999)). Nevertheless, the trial court has discretion in 

determining the amount of setoff when the settlement involves more than one 

claim. See Glenn v. 3M Co., Op. No. 5975 (S.C. Ct. App. filed Apr. 5, 2023) 

(Howard Adv. Sh. No. 13 at 102, 143) ("Riley [,414 S.C. at 196, 777 S.E.2d at 830] 

indicates that the circuit court has discretion as to merely the amount to be setoff 

against the verdict when the settlement involves multiple claims."). 

As to allocation of settlement funds by and between settling parties, our supreme 

court has agreed with the following approach taken by the Illinois Court of 

Appeals: 
A plaintiff who enters into a settlement with a defendant 

gains a position of control and acquires leverage in 

relation to a nonsettling defendant. This posture is 

reflected in the plaintiff's ability to apportion the 

settlement proceeds in the manner most advantageous to 

it. Settlements are not designed to benefit nonsettling 

third parties. They are instead created by the settling 

parties in the interests of these parties. If the position of 

a nonsettling defendant is worsened by the terms of a 

settlement, this is the consequence of a refusal to settle. 

A defendant who fails to bargain is not rewarded with the 

privilege of fashioning and ultimately extracting a benefit 

from the decisions of those who do. 

Riley, 414 S.C. at 197, 777 S.E.2d at 831 (quoting Lard v. AM/FM Ohio, Inc., 901 

N.E.2d 1006, 1019 (Ill. App. Ct. 2009)). 

When a plaintiff removes certain elements of damages from its case because of a 

pretrial settlement, the court may find the defendant tortfeasor has received the 

benefit of a setoff based on the plaintiff's lowered request for damages. See Oaks 

at Rivers Edge Prop. Owners Ass'n. v. Daniel Island Riverside Devs., LLC, 420 

S.C. 424, 442, 803 S.E.2d 475, 484 (Ct. App. 2017) (affirming the trial court's 

denial of setoff, reasoning "Appellants already received the benefit of the 

settlements" totaling $4,260,497.93 when the plaintiffs reduced their damages 

request by that amount). 

ANALYSIS 

I. Setoff For Posttrial Settlement With CBC 

To examine the setoff of the posttrial settlement between CBC and Plaintiffs, the 

$2,137,500 at issue must be broken down into separate components. First, the $1 

million in insurance proceeds from a July 2018 agreement between Plaintiffs, 

CBC, and an insurer of CBC's was allocated by those parties as follows:10 

10 This agreement was denominated a "Mediated Partial Payment" and 

incorporated a "Covenant-Not-to-Execute." The insurer paid $1 million, which 

"constitute[ed] a credit in the same amount against any judgement obtained against 

CBC." The agreement released the insurer from any further obligation to CBC 

under the policy, primarily a duty to defend, and provided Plaintiffs would not 
• $900,000 - HVAC and electrical 

• $100,000 - concrete, flooring, interior handrails, fireplaces, and 

drainage11 

Second, an additional $1,137,500 was allocated as follows: 

• $137,500 - exterior railings12 

• $100,000 - fire separation penetrations other than those caused by the 

location of the fire sprinkler distribution system within the fire rated 

wall separating the units within each building 

• $400,000 - framing work to provide code-compliant access to HVAC 

equipment 

• $500,000 - punitive damages 

In declining to grant TCR a setoff for the entirety of the settlement, the trial court 

relied on Riley v. Ford Motor Co., 414 S.C. 185, 197, 777 S.E.2d 824, 831 (2015), 

for the proposition that a plaintiff is entitled to allocate settlement funds in the 

most advantageous way to it, even if that may disadvantage a nonsettling tortfeasor 

like TCR.13 The trial court also stated TCR was not entitled to a setoff for the 

execute against CBC's assets or its officers' personal assets in collecting any 

judgment. The agreement did not release CBC as a defendant and specifically 

reserved Plaintiffs' right to pursue its claims against CBC and all other parties. All 

necessary signatures—Plaintiffs', CBC's, and the insurer's—were obtained at that 

time; the document, according to its terms, became irrevocable at that time, and the 

$1 million was paid to Plaintiffs at that time. 11 The settlement denotes these were "items not included at trial." 

12 Plaintiffs conceded and the trial court allowed this portion of the CBC settlement 

as a setoff to TCR. 

13 We caution the trial bench that allocations in settlements are not simply to be 

accepted but are to be examined to ensure a measure of fairness to all parties. As 

the trial court and Plaintiffs have pointed out, our courts have generally recognized 

Plaintiffs are permitted to allocate settlement proceeds as they determine, even if 

that might be detrimental to a nonsettling defendant. Riley, and the Illinois case on 

which it relies, contemplate the possibility that agreed-upon settlement allocations, 

largely driven by plaintiffs, may not always be appropriate. See Riley, 414 S.C. at 

197, 777 S.E.2d at 831 ("Although the manipulation of an allocation can be 

evidence of bad faith in a settlement negotiation, it is not per se bad faith to engage 

in the advantageous apportioning of a settlement." (quoting Lard, 901 N.E.2d at 
portion of the settlement allocated to punitive damages. We will address each 

component of the CBC postverdict settlement in turn. 

A. The $1 Million Insurance Proceeds from July 2018 Mediated Partial 

Payment/Covenant-Not-to-Execute 

TCR contends the $1 million insurance payment allocated to HVAC, electrical, 

drainage, and fireplaces—matters for which damages were not sought at trial—was 

a settlement for the same injury represented by the verdict in the case. Therefore, 

it was entitled to a setoff. See § 15-38-50 (explaining right to setoff arises when 

two parties are liable in tort for the same injury). Plaintiffs claim these damages 

did not represent the same injury and because they did not seek damages for 

HVAC, electrical, drainage, and fireplaces at trial, TCR is not entitled to a setoff. 

We agree with Plaintiffs. 

In Oaks at Rivers Edge, 420 S.C. at 432, 803 S.E.2d at 479, the developer and the 

construction manager of condominiums sought a setoff for a pretrial settlement 

with other tortfeasors in the construction defect case. The settlement contemplated 

damages resulting from the "design, manufacture, sale, and installation of the 

windows, window units, exterior doors, exterior door units, railings, balustrades, 

framing, and caulking." Id. at 434, 803 S.E.2d at 480. "However, [because the 

plaintiffs] removed from their claim the repairs necessitated by the damage caused 

by the window installation," the court determined the developer and construction 

manager "have already received a reduction in claims as contemplated by section 

15-38-50 . . . ." Id. at 441, 803 S.E.2d at 484. 

As in Oaks at Rivers Edge, by eliminating repair costs for HVAC, electrical, 

drainage, and fireplaces from its damages estimate, Plaintiffs effectively gave TCR 

(and all the defendants at trial) a setoff and thus the trial court did not err in 

declining to give a second reduction by setting off this amount from the verdict. 

Therefore, we find the trial court did not err in denying the $1 million payment as a 

setoff.14 

1018)). See also Rutland, 400 S.C. at 220, 734 S.E.2d at 147 (Pleicones, J., 

dissenting) (suggesting the court's reallocation of settlement proceeds is 

inappropriate when "there is no suggestion of fraud or other wrongdoing by 

the plaintiff" (emphasis added)). 

14 TCR does not maintain the $1 million payment was actually unallocated based 

on the fact this document was executed and the sum paid to Plaintiffs in July 

2018—well before the full posttrial settlement between Plaintiffs and CBC. 
B. $637,500 of CBC Settlement Allocated for HVAC access, fire 

separation penetration, and exterior railings 

Here, unlike the $1 million payment allocation, the $637,500 allocation was for 

issues that Plaintiffs put before the jury.15 In discussing pretrial matters, Plaintiffs 

indicated the issue regarding lack of access to the HVAC units due to framing 

mistakes was "still in the case." Furthermore, during trial, Plaintiffs questioned 

their expert, Mease, about the lack of access to the HVAC units due to improper 

framing and introduced photographs documenting the issue, noting it was a code 

violation. Likewise, Plaintiffs questioned Mease regarding fire separation 

penetrations. Mease testified numerous firewall penetrations were visible in the 

attics of the condominium units due to sprinkler installation, framing, ducting, and 

plumbing. Plaintiffs introduced photographs documenting instances of these 

errors. Because these issues were raised and discussed at trial, Plaintiffs cannot 

make the same pretrial damages reduction argument they persuasively made in 

section IA. 

TCR contends the entirety of Plaintiffs' settlement with CBC should be set off from 

the verdict against it because the settlement is in reality a satisfaction of a 

judgment, as opposed to an allocated settlement. We agree. Responding to this 

contention, Plaintiffs maintain that by settling prior to the entry of judgment, CBC 

was never subject to a judgment and therefore TCR's argument fails. Plaintiffs 

misconstrue the crux of TCR's argument. While CBC was not technically subject 

to a judgment, that is not what is required for TCR to be entitled to setoff. Setoff is 

premised on a settlement corresponding to the same injury. See Widener, 397 S.C. 

at 471-72, 724 S.E.2d at 190 ("[B]efore entering judgment on a jury verdict, the 

court must reduce the amount of the verdict to account for any funds previously 

paid by a settling defendant, so long as the settlement funds were paid to 

compensate the same plaintiff on a claim for the same injury."). In this case, TCR 

and CBC were found jointly and severally liable for all the injuries put before the 

jury including damages related to framing for HVAC access and fire separation 

penetrations not related to sprinkler installation. The injuries addressed by the 

jury's verdict cannot now be parsed out and separated simply because Plaintiffs 

settled their claim against CBC prior to the entry of judgment. See Armstrong v. 

Likewise, TCR does not allege apportioning this part of the funds to matters not 

discussed at trial was in bad faith. Regardless, TCR was not found liable for 

damages related to HVAC, electrical, flooring, concrete, drainage, or interior 

railings as those were not included in Plaintiff's request for damages at trial. 

15 Plaintiffs concede a setoff of the full $137,500 allocated to exterior railings. 
Collins, 366 S.C. 204, 227, 621 S.E.2d 368, 379 (Ct. App. 2005) (declining to 

"speculate as to how the jury allocated damages resulting from a general verdict"). 

Therefore, Plaintiffs would receive a double recovery if both TCR were to pay for 

these injuries and CBC's settlement compensated them for the same injuries. 

Accordingly, we conclude the trial court erred in denying a setoff to TCR for the 

remaining $500,000 of the CBC settlement allocated to framing for HVAC access 

and fire separation penetrations not related to sprinkler installation. 

C. Punitive Damages 

Finally, TCR argues it should receive a $500,000 setoff for the punitive damages 

portion of the CBC settlement because, pursuant to Widener, punitive damages are 

part of the same injury as actual damages in the context of setoff. Plaintiffs 

contend the punitive damages award against CBC and TCR constitute two separate 

injuries so that the trial court properly denied TCR's setoff request. We agree with 

Plaintiffs. 

In Widener, the plaintiff sued several defendants under several theories, all seeking 

$35,410.38 in damages for wrongfully denying her access to funds from her late 

husband's retirement account. 397 S.C. at 471, 724 S.E.2d at 190. The plaintiff 

settled with one defendant for $35,410.38 and proceeded to trial against two other 

defendants. Id. The jury returned a verdict of $35,410.38, and the two nonsettling 

defendants asked for a setoff. Id. The plaintiff claimed her settlement had been 

solely for punitive damages. Id. at 472, 724 S.E.2d at 190-91. In reversing the 

denial of the setoff request, this court, in a 2-1 opinion stated: "[W]e hold that 

when a plaintiff seeks actual and punitive damages arising out of the same injury, 

the two types of damages are part of the same claim for purposes of determining 

whether a nonsettling defendant is entitled to a setoff to account for funds paid to 

the plaintiff by a settling defendant." Id. at 470, 724 S.E.2d at 189. The court 

further found the plaintiff's position the settlement was solely for punitive damages 

was not credible. Id. at 474, 724 S.E.2d at 191-92. 

In this case, if the jury's verdict evidenced a single punitive damages award against 

TCR and CBC jointly and severally, Widener might dictate TCR is entitled to a 

setoff and the funds would not be insulated by the fact that the punitive damages 

award against CBC was not carried to final judgment. However, the form of the 

jury's verdict indicates it found TCR and CBC each individually liable for a 

punitive damages award. Although section 15-32-520(G) of the South Carolina 

Code (Supp. 2022) addresses a bifurcated damages trial, it is still relevant: "In an 

action with multiple defendants, a punitive damages award must be specific to each 

defendant, and each defendant is liable only for the amount of the award made 
against that defendant." Furthermore, in McGee v. Bruce Hosp. Sys., 344 S.C. 466, 

545 S.E.2d 286 (2001), the court addressed the situation in which two joint 

tortfeasors face punitive damages. 

While "it is almost universally held that there can be only 

one satisfaction for an injury or wrong," allowing 

petitioner to seek punitive damages against respondent 

will not result in petitioner having a double recovery. 

Although [one co-defendant] has paid the punitive 

damages levied against him, those punitive damages do 

not reflect the amount of punitive damages for which a 

jury may find that respondent is responsible. 

Id. at 471-72, 545 S.E.2d at 288-89 (footnote omitted). 

The facts of this case call for application of the principles set forth in section 15-

32-520(G) and McGee because both TCR and CBC proceeded to a verdict on the 

punitive damages issue and the verdict indicated separate exemplary damages for 

each tortfeasor's conduct. Accordingly, we agree with the trial court's refusal to set 

off the punitive damages award. 

II. Setoff For Pretrial Settlements 

Next, we turn our attention to setoff involving pretrial settlements. TCR maintains 

the trial court erred in failing to set off the jury verdict with the full amount of the 

settlements for damages not specifically removed from the trial of the case as issue 

release items. It asserts whatever damages were not explicitly removed from trial 

by the issue releases were presented to the jury through testimony and exhibits. It 

contends because a general contractor is responsible for the entire construction 

project and CBC was a defendant throughout the entire trial, any area not covered 

by an issue release was necessarily included.16 We disagree. The trial court 

awarded the following setoffs: 

16 Plaintiffs contend any argument TCR asserts suggesting it is entitled to setoff as 

a matter of equity or pursuant to the common law is unpreserved. We disagree. At 

the posttrial hearing, near the beginning of TCR's setoff argument, TCR stated, 

"back to setoff. As Your Honor is aware, for over 180 years from the common law 

and at least since the [19]80's according to statutory law, setoff is a required by the 

law." Even though the trial court did not explicitly refer to common law setoff in 

its order, the point was sufficiently addressed so as to preserve it for appellate 
Party Settlement Plaintiffs Concede for Setoff 

Atlantic Building (framing) $700,000 $75,000 

Novus (architect) $650,000 $65,000 

Cohen's (drywall) $125,000 $62,500 

H and A (framing) $500,000 $50,000 

Plaintiffs assert TCR cannot prove the verdict overlaps with the same damages or 

claims compensated by these settlements. They argue TCR is not entitled to any 

further setoff for pretrial settlements than was already awarded and that TCR has 

already benefited from three damage reductions, to wit: (1) Plaintiffs reduced their 

damages at trial and only asked the jury for compensation related to defects and 

damages resulting from work performed by the defendants who remained in the 

case at the time of trial (to the exclusion of settled issues), and further reduced their 

damages by an additional $1 million during closing arguments to account for 

untried issues; (2) the defendants asserted the empty chair defense to the jury, 

which awarded Plaintiffs a further reduced amount; and (3) TCR received a $1.67 

million setoff from the trial court to account for any overlap between pretrial and 

posttrial settlements and the jury's verdict. Plaintiffs also assert they have not 

received a double recovery because their expert attributed $8.375 million in 

damages to TCR and the trial court entered the judgment against TCR for $4.83 

million. 

As an initial point, the trial court's order alludes to caselaw involving the settling 

parties' allocation of settlement funds, and suggests that the allocation by those 

parties is entitled to a certain amount of deference. The trial court's order, quoting 

Riley concluded it could not "disturb the settling parties' agreed-upon allocation 

solely because the apportionment may have been advantageous to the [plaintiff]." 

414 S.C. at 196, 777 S.E.2d at 831. However, in this case, no allocations appeared 

review. See Johnson v. Roberts, 422 S.C. 406, 412, 812 S.E.2d 207, 210 (Ct. App. 

2018) ("It cannot be said that Appellant's arguments are clearly preserved. But in 

light of the foregoing, it also cannot be said that Johnson's arguments are clearly 

unpreserved. In these situations, 'where the question of issue preservation is 

subject to multiple interpretations, any doubt should be resolved in favor of 

preservation.'" (quoting Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 

323, 333, 730 S.E.2d 282, 287 (2012) (Toal, C.J., concurring in result in part and 

dissenting in part))). 
in the pretrial settlement agreements. Rather, these amounts were concessions 

Plaintiffs made in response to TCR's setoff motion. In spite of this potential 

conflation, we do not believe the trial court abused its discretion in awarding the 

setoffs for the pretrial settlements as it did. 

Defendants mentioned the work of the architect, Novus, a number of times at trial, 

ostensibly as part of the empty-chair defense.17 There were references to the way 

the roof was designed as being one cause of leaking.18 Also, testimony was given 

that the subcontractors made requests for information to the architect that were 

never answered. Additionally, there was testimony about the complicated 

intersections of the posts and roofs and decks.

19 The testimony presented supports 

a finding that some measure of negligence by Novus in its planning impacted 

TCR's performance resulting in leaking in the condominiums. However, in the 

absence of further testimony or evidence as to the extent of Novus's responsibility 

for injuries encompassed in the jury's verdict, we find the trial court did not abuse 

its discretion in granting a 10% setoff. 

Regarding the Atlantic and H and A settlements, framing was mentioned briefly at 

trial although the parties disagree as to how much that issue was actually before the 

jury.

20 Plaintiffs argue the framing settlements covered two principle issues— 

17 In particular, Plaintiffs maintain TCR pointed the finger at the architect 

repeatedly during closing arguments and referenced the original damages estimate 

to assert certain parts of the damages should be ignored. 

18 The record contains testimony that the amount of slope of the roofs was an 

architectural design and was unusual. This is a separate issue from the slope of the 

decks, which is discussed in regards to the framers next. 19 Elkin testified "my initial takeaway was that some of these were some pretty 

challenging intersections. . . . [A]ny time you have two different materials 

interface it gets to be -- it is a hard -- it can be a hard transition to make to keep it 

watertight. In this instance when you have three different materials coming 

together in different planes it becomes that much harder to make sure it is 

constructed in a watertight manner." 

20 Poyner, of TCR, testified as follows: 

Q. Do you recall what it looked like out there at this 

time period with some of the siding coming off? 

A. Well, the -- when this came out, obviously some of 

the buildings were -- the exteriors were fairly far along, 
even having been painted, and the siding had to be -- they 

asked me to remove a section of the siding. 

Q. Now, was the siding being removed for your 

installation issues? 

A. It was not. 

Q. Was it a framing issue? 

A. Yes, sir, it was. 

Q. Okay, and you weren't involved in the framing issue, 

right? 

A. No, sir. 

Q. And so you don't -- you're not going to offer any 

testimony as to what they were looking at with the 

framing? 

A. No, sir. 

He also testified: 

A piece of plywood does not do weather -- does not do 

well when it's weathered. So, very early on when they 

would frame up those decks, we would come in and 

actually put the base coat on and get the product up the 

post. 

Now, in, in going back and looking, I know that there 

were some posts that were structural and some that were 

just ornamental. You couldn't tell the difference, but the 

difference was the structural posts were put in at the 

beginning when the building was framed. The 

ornamental posts weren't always put in at the same time 

that they built the deck. Were, you know, framing up the 

house and even when the waterproofing on -- some, some 

instances they came back and put those posts after we 

had already waterproofed the deck. 

Q. And you were not a framer who installed those 

posts? 

A. No, sir. 

Q. The lumber that is out there on the decks, is that 

pressure treated? 
shear walls and window installation—and that these issues were not presented to 

the jury at all. According to Plaintiffs, the record shows the only possible framing 

scope litigated that might relate to TCR's "siding work" was the installation of the 

windows' caulk joint. Plaintiffs conceded and the trial court accepted a 10% setoff 

of the verdict for the Atlantic and H and A settlements, respectively, to allow for 

any potential overlap; accordingly, the jury verdict was set off by $75,000 for 

Atlantic and $50,000 for H and A. While TCR asserts some testimony was 

presented that framing contributed to the faulty waterproofing of the decks, we 

cannot conclude the trial court abused its discretion in declining to award TCR a 

setoff for the full amounts of the Atlantic and H and A settlements.

21 

A. I do not believe it was. I think the first one they did -

- once again on the River Birch -- I think they had tried to 

install treated lumber, but the manufacturer's instructions 

say, I believe, not to use treated lumber. 

Q. You're talking about the sheathing on the --- 

A. That's correct. 

Q. --- the posts? Are those treated? 

A. They are. 

Q. Okay, and the, the, the actual framing parts of the, 

the joists, those are treated? 

A. As far as I know. 

21 Poyner testified on cross-examination by one of the codefendants: 

Q. So, this is simply if any work that's found not to in 

conformance with the plans and specifications is 

discovered, it is to be redone and done correctly, correct? 

A. That's correct. 

Q. All right, and, in fact, you witnessed such a situation 

with regard to the slope of the decks on this project, did 

you not? 

A. That is correct. 

Q. Is it true that a gentleman named Gary Stanley was 

the superintendent for [CBC]? 

A. Yes, he was. 

Q. And he was the one that was on-site most of the time 

for [CBC]? 

A. That and later they had brought Joe Brown as well. 
Finally, regarding the Cohen's settlement, Plaintiffs assert it involved drywall and 

insulation issues. Plaintiffs contend drywall issues were litigated at trial but 

insulation issues were not and thus they proposed the $125,000 settlement be 

divided equally between the drywall and insulation so that each was attributed 

$62,500. The court reduced the final judgment by $62,500 due to the potential of 

drywall overlap. The testimony included in the record only contains a few 

references to insulation.

22 Accordingly, we conclude the trial court did not abuse 

its discretion in awarding a setoff in this amount for this settlement. 

CONCLUSION 

In sum, we conclude the trial court did not abuse its discretion in refusing to set off 

the entirety of the pretrial settlements between Plaintiffs and Novus, Atlantic, H 

and A, and Cohen's. Further, we find the trial court did not err in denying TCR's 

request for setoff as to the $1 million of the CBC settlement allocated to matters 

not raised at trial or for the $500,000 allocated for punitive damages. We reverse 

the portion of the trial court's order denying TCR a setoff for the $500,000 of the 

Q. Okay, and Mr. Stanley, at least as part of his duties, 

would also spot check and come behind each of the 

subcontractors to look at their work, did he not? 

A. Yes, sir. 

Q. Okay, and isn't it true that Mr. Stanley, before the 

waterproofing was put down, he would check the slope 

of the decks? Isn't that, correct? 

A. I believe so, yes, sir. 

Q. And, in fact, you saw him use a level to look at the 

decks to make sure they had proper slope? 

A. I did. 

Q. And, in fact, there was -- if a deck was discovered 

not to have a proper slope, Mr. Stanley would make the 

framer redo it before you put your waterproofing on the 

deck, correct? 

A. That's correct. 

22 Elkin's testimony refers to insulation but it does not appear to be referencing any 

problem with insulation. Schweickhardt mentioned damaged insulation in his 

testimony but he appears to have attributed the damage to the leaking from 

flashing, not due to any issue with the insulation. 
$637,500 portion of the CBC settlement not already setoff for exterior railings. 

Accordingly, the trial court's order is 

AFFIRMED IN PART AND REVERSED IN PART. 

HEWITT and VINSON, JJ., concur.